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ELRCDismissedNot stated in the judgment as provided· [2019] KEELRC 1383 (KLR)

Moses Kingori Ndunyu v Choice Microfinance Bank Limited & another [2019] KEELRC 1383 (KLR)

Employment and Labour Relations Court
14 June 2019
MOMaureen Onyango
1,318 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a sacked CEO's injunction bid, ruling courts won't issue orders that are pointless because employment has already ended.

What this practically means

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Executive summary

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The Applicant, Moses Kingori Ndunyu, former Chief Executive Officer of the 1st Respondent, sought temporary injunctions restraining the Respondents from interfering with his employment and access to his office following his termination on account of poor performance. His application was supported by his affidavit; the Respondents opposed through the 2nd Respondent's Replying Affidavit. Ex parte orders issued on 18th July 2018 restrained interference pending inter partes hearing, prompting the Respondents' application dated 25th July 2018 to stay, vacate or set aside those orders, arguing the Applicant's employment had already been terminated on 17th July 2018. The Applicant claimed the termination letter was forged and that no board meeting recommended his termination. Applying the Giella v Cassman Brown test, the court found email evidence showed the Applicant knew of his termination when filing the application, and that by the time the orders were granted on 18th July 2018 his employment had already ended. Invoking the principle that equity does nothing in vain, the court held that orders incapable of enforcement or ineffective for practical purposes should not be granted. It further found the disputes of fact required examination of evidence at trial, and that the Applicant would suffer no irreparable loss since damages would compensate him and similar relief was sought in the main claim. The Applicant's application was dismissed and the orders of 18th July 2018 were vacated. Judgment delivered at Nairobi on 14th June 2019 by Maureen Onyango J.

Key legal issues

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01

Whether a prima facie case was established for a temporary injunction

Holding

No prima facie case justified the injunction; the Applicant knew of his termination when filing the application, and the main claim would allow full ventilation of the disputes of fact

Reasoning

The court found an email from Faith Kosilbet to the Applicant evidencing that the termination letter was sent to him before he filed the application. The competing assertions about forgery of the termination letter required examination of witness testimony, which cannot be done at interlocutory stage. The prayers in the application duplicated those in the main claim.

p. 2
02

Whether the orders sought were enforceable and whether irreparable harm existed

Holding

The orders could not be enforced because the employment had already been terminated on 17th July 2018; the Applicant could be compensated by damages

Reasoning

The termination of the Applicant's employment on 17th July 2018 was not in dispute. Issuing an injunction restraining termination of an already-terminated employment would be futile. The court applied the maxim that equity does nothing in vain and held that damages are an adequate remedy since similar relief is sought in the main claim.

p. 2

Legal principles established

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  • Courts cannot make orders which cannot be enforced or grant an injunction which will be ineffective for practical purposes
  • The three-fold test for granting a temporary injunction

Court orders

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  1. 1.The Applicant's application is dismissed
  2. 2.The orders issued on 18th July 2018 are vacated

Authorities

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Cases cited (3)

  • Giella vs. Cassman Brown
    [1973] EA 358
  • Anita Cheleagat O’donovan & 2 others vs. Fredrick Kwame Kumah & 2 Others
    [2015] eKLR
  • Kalya Soi Farmers Cooperative Society v Paul Kirui & Another
Jurisdiction invoked
Employment and Labour Relations Court original jurisdiction (not expressly cited in the extract)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Moses Kingori Ndunyu v Choice Microfinance Bank Limited & another [2019] KEELRC 1383 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1383/eng@2019-06-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.